9. Civil Department

Base Number: 2015/22089

Decision Number: 2015/29606

“text of jurisprudence”

CASE : The plaintiff requested that the invalidity of the termination and the return to work be decided.
The local court has decided to dismiss the case.
Although the plaintiff’s lawyer appealed within the term of the judgment, the file was examined after the report organized by the Audit Judge for the case file was heard, and the need was discussed and considered:


A) Summary of the Plaintiff’s Claim:
Attorney for plaintiff; the plaintiff the defendant company started on 03.12.2010 Dudullu in the workplace, the plaintiff made in overtime at work, despite much work due to non payment of fees from the employer for their hard work this continuous wanted to intimidate other workers and for that reason, the plaintiff orally terminated his employment in the workplace …. eating in the workplace and are given the possibility exists, therefore, that the plaintiff and the employees they go out for a lunch break, when they come to work without permission from the business manager of the work he left he was asked to defend on the grounds that the plaintiff did his job every day since the first day, 2 hours, doing overtime, keeping, and requested that the termination be decided by stating that gecerszlig is absent.
B) Summary of the Respondent’s Response:
The defendant’s deputy; the plaintiff’s employment contract has been terminated for justified reasons, the plaintiff’s employment as a fresh sales officer at the defendant’s employer …. that you are also employed,…..’s also should be included in the case, the plaintiff’s employment, the Labour Law No. 4857 25/2-e is terminated pursuant to the plaintiff’s leave the workplace unannounced and without permission during working hours and they were playing in a coffee house with her friends, both orally and in writing upon the termination of employment of the plaintiff by stating that the case be given to the decision of the denial of the requested.
C) Summary of the Decision of the Local Court:
Delivery boy visits the court as the plaintiff’s reported they completed they need to do during the day as sufficient evidence of completing exists where the plaintiff relaxation time of the working hours are flexible, Dec set itself, but by the employer on the employer to be caught playing the Joker in coffee is a negative behavior, but this behavior of an employment contract that would require the employer to terminate for good cause without the weight, on the grounds that the termination was valid performed by the acceptance of the case was decided.
D) Appeal:
The deputy plaintiff appealed the decision.
E) The reason:
20/II of the Labor Code No. Article 1, it is clearly stated that the burden of proof that the termination is based on valid reasons is given to the respondent employer.
When the employer fulfills the burden of proof, he will first of all prove that he complies with the formal conditions of termination. Accordingly, he must have completed the termination process in writing, documented that he wants the employee to defend himself in certain situations, and concretely and clearly showed the reasons for the termination based on the content of the written termination process. After it becomes clear that the employer has fulfilled the formal conditions, the stage will be taken to prove that the reasons for termination in terms of content are valid (or justified).
18 of the Labor Code No. 4857. the article authorized the employer to terminate the employment contract for reasons arising from the employee’s behavior and competence. The purpose of termination resulting from the employee’s behavior is not to punish or sanction the violation of the employment contract committed by the employee earlier; it is to avoid the possibility of continuing, repeating the violation of his contractual obligations. In order for the employment contract to be terminated due to the employee’s behavior, it is necessary that the employee has a violation of the employment contract, a violation of the contract. If the defective behavior of the employee is contrary to the contract and as a result the business relationship is adversely affected, there will be a valid termination caused by the behavior of the employee. In turn, since the employee cannot be held responsible for his non-contractual behavior that is not based on the employee’s defect and negligence, the valid reason for termination caused by the employee’s behavior cannot be mentioned either.
The reasons arising from the behavior of the worker and his competence are determined by Article 25 of the same law. in addition to the reasons mentioned in the article, although they are not of this nature, they are the reasons that significantly negatively affect the appearance of work in workplaces. In cases where the continuation of the employment relationship cannot be expected to be significant and reasonable from the employer’s point of view, it will be necessary to recognize that the termination is based on valid reasons for the reasons arising from the employee’s behavior or inability.
The employer, who has the burden of proof, must also prove that the plaintiff’s behavior or inability for a valid and justified reason leads to negativity in the workplace and that the employment relationship has become unbearable.
According to the contents of the file, the employment contract of the plaintiff worker has been terminated in accordance with Article 25/II-e of the Labor Code No. 4857. Although the defendant claimed that the plaintiff did not complete the visit he was supposed to make on 07.09.2012, but reported it as completed, this point was not proved by concrete and convincing evidence, as was accepted in the court decision justification. The defendant also states that the plaintiff was caught playing okey in a coffee shop on 10.09.2012, therefore his employment contract was terminated. Involving testimony, plaintiff 12:00-13:00 at the coffee shop because they have been found to be in the plaintiff, such as the distribution of employees in the business at what times of the Dec determined that daily use of time, usually used to give the declaration of Dec by this time, according to these matters, and you can’t justify the termination of the termination is invalid when it should be accepted that the decision by the court on the grounds for dismissal written above is incorrect.
in accordance with Article 20/3 of the Labor Law No. 4857, the following decision was made by our Department.
With the justification described above;
1. VIOLATION AND ELIMINATION of the Court’s decision,
3. Despite the applicant’s application within the legal period, the amount of compensation that should be paid if the defendant is not started by the employer within the legal period should be determined in the amount of the plaintiff’s 4-month gross salary, which is assessed taking into account the plaintiff’s seniority, the reason for termination,
4. If the plaintiff applies to the employer for the return of the employee to work within the period of 4 months until the decision is finalized, the right to collect wages and other rights from the defendant,
5. Since the fee is received in advance, there is no place for it to be re-taken,
6. 307.60 TL of the trial expenses incurred by the plaintiff are collected from the defendant and given to the plaintiff, leaving the defendant above the trial expenses incurred by the defendant,
7. According to the tariff in force on the date of the decision, a fee of TL 1,500 will be charged to the plaintiff by taking the power of attorney from the defendant,
8. If the application fee received in advance is requested, it will be refunded to the interested person,
The final decision was made unanimously on 22.10.2015

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